Slade v. Little

By the Court. Benning, J. delivering the opinion. ■[I.] The-charge of the Court was, “ That if the defendant [374] (represented Eli Fenn as good for his debts and solvent, then ithe plaintiff is entitled to recover, if they find it to be proven that he was insolvent, and that defendant knew it at the time >of the. sale.” The evidence on the point as to the representation, was that tof.one McCoy, and was as follows: “that he” (McCoy) “ and 'T..M. Jackson, as agents of plaintiff, sold a buggy to Eli .Fenn. William Slade, the defendant, recommended him; ■Slade said to witness, upon being inquired of by witness, that Eli Fenn was acquainted with him, and had been for some time, and that he, Fenn, was good for his contracts, as far as he knew.” Was the charge right ? To render a representation of solvency actionable, several rthings must, even according to Pasley vs. Freeman, (3 Term Rep.) concur, and among them these: 1. The party who makes the representation must know it to be false; the party to whom it is made, must not know it to be false. 2. The amount for which the representation intends to say that the person for whom it is made is good, should appear with reasonable certainty in the representation. The representation in Pasley vs. Freeman stated, that the person would be good for sixteen bags of cochineal. 3. The representation must be one, the parties to which are the parties to the action or their known agents. None of these things concur in this representation. ■ There is nothing in the evidence going to show that Little was not acquainted with Fenn’s condition, as to solvency. And if there had been anything, the charge was such, that it would have excluded it from the Jury. And then, for what amount is it that the representation intended to say that Fenn was good? “Good for his contracts.” What contracts? Contracts to an amount indefinitely large ? Contracts already made ? Contracts not exceeding in amount those already made ? Contracts similar ■to those already made ? Similar in amount ? Similar in the [375] time of credit ? Similar in the consideration ? Is there any certainty that the representation intended to say that Slade was good for a buggy ? There is none. And lastly, how can Little say that this representation was. made to Aim? The proof is, that it was made'to McCoy.. It is true that the proof also is, that McCoy was his agent; but there is no proof that Slade knew this. And it is simply impossible that Slade could have intended to deceive Little,, if he did not know that McCoy was representing Little. In addition to all this, it may be asked whether the representation really amounted to a positive statement that Eennwas solvent at all. “ As far as he knew.” Does a man who. speaks thus assume to know ? Rather, does he not intimate that he does not know and hint that further inquiry ought to be made ? It is to be remembered that Slade did not volunteer this representation. He made it not even at the instance of Eenn, but solely at the insance of McCoy, Little’s agent. He made it in answer to McCoy’s inquiry. Upon the whole, we think that the charge of the Court was-erroneous. I remark for myself, that I do not acquiesce in Pasley vs. Freeman, and the cases which follow that case. See Savage’s Ex’rs vs. Jackson, decided at Macon, January, 1856-